Category Archives: Reasonable Expectation of Privacy

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2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

A Plaintiff successfully excluded the Defendant’s testifying expert whose opinion was that “no one, including Plaintiffs, has a reasonable expectation of privacy in Internet communications.” Clements-Jeffrey v. City of Springfield, 2011 U.S. Dist. LEXIS 81898, 2-3; 10 (S.D. Ohio July 27, 2011).

The case involved the theft of a laptop. The “contextual expert” was going to offer the following opinions:

1. It is not reasonable to believe that electronic communication is private online.

2. Only the original owner of a computer can have meaningful knowledge of security protection it contains. Any subsequent user of a laptop cannot assume automatic protection of any kind.

3. Computer, laptop, and electronic equipment theft is a serious social and criminological problem for organizations, businesses and individuals that requires reasonable remote and location-specific security solutions.

4. When a company activates system operation software capture for security reasons, the representatives of the company/employees cannot predict the nature of the material that will be accessed.

The Court held the Defense Expert’s opinion was “absolutely irrelevant,” because the issue of whether the Plaintiffs had a reasonable expectation of privacy in their Internet communications was a question of law. Clements-Jeffrey, at *6.

The Court further noted that the expert’s “opinion” was also contrary to case law. Id.

The Court quickly recounted well-established precedent by multiple courts recognizing individuals having an objective reasonable expectation of privacy in their computers. Clements-Jeffrey, at *7.

Moreover, case law has held that password-protected personal computers have an even greater privacy protection. Id.

Furthermore, the Sixth Circuit held that that “the very fact that information is being passed through a communications network is a paramount Fourth Amendment consideration.” Clements-Jeffrey, at *8, citing Warshak, at *285. As the Court further explained:

The court in Warshak also held that even though email had to pass through an Internet service provider (“ISP”), and even though that provider may have contractually reserved the right to access the subscriber’s email in certain circumstances, neither the ability of the ISP to gain that access, nor its contractual right to do so, extinguished the user’s reasonable expectation of privacy.

Clements-Jeffrey, at *8-9, Warshak, at 286-87.

The Court drove the issue home on the expert’s opinion with the following:

These holdings can logically be extended to cover instant messages and webcam communications, the types of electronic communications at issue in this case. Applicable statutes also shed light on whether an individual has an objectively reasonable expectation of privacy in electronic communications. The Stored Communications Act (“SCA”), 18 U.S.C. § 1701 et seq., at issue in Warshak and Quon and the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized access of stored communications such as email. The Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2511, also the subject of one of Plaintiffs’ claims in this case, specifically prohibits the intentional, unauthorized interception, disclosure, and use of wire, oral, and electronic communications.

Clements-Jeffrey, at *9-10.

The Court held that the expert’s opinion was “contrary to law, and thus not relevant to the issues in this litigation.” Clements-Jeffrey, at *10.

Bow Tie Thoughts

To say that the expert’s opinion that “no one” has an objective reasonable expectation of privacy in Internet communication bothered the judge is an understatement.

Privacy is a key battleground in litigation today, because individuals live their lives connected to email, text messages, IM’s, social media and whatever network their data is being sent over. Relevant information is rightly subject to discovery in litigation, but to say there are no privacy interests at issue is a grave mistake.

The fact data is sent over an ISP does not render the 4th Amendment dead-letter law. Congress will continue to debate these issues and Courts will continue to vindicate these rights in litigation. These issues will continue to make case law for the foreseeable future.

Vermont: Personally important because it is the State where I get many of my bow ties (along with the ones for the high school mock trial team I coach).

Vermont is legally relevant because it is the land of a state Supreme Court decision on whether you have a legitimate expectation of privacy in IP addresses and warrantless searches of MySpace and Verizon.

The Defendant in State v. Simmons was arrested for stealing a laptop. The appeal focused on whether the subpoena to MySpace and Verizon was a violation of the Vermont Constitution, which offered broader protections then the 4th Amendment. State v. Simmons, 2011 VT 69, NaN-P1 (Vt. 2011).

4th Amendment case law has held that “Internet users have no reasonable expectation of privacy in their subscriber information, the length of their stored files, and other noncontent data to which service providers must have access.” Simmons, P8, citing,United States v. D’Andrea, 497 F. Supp. 2d 117, 120 (D. Mass. 2007).

The detective investigating the theft of the two laptops got an anonymous tip that someone named “Graham” had one of the stolen laptops and was accessing his neighbor’s WiFi signal. Simmons, P2.

The tip said the alleged thief lived on the same street as the victims who had their computers stolen. Id.

The detective determined through public records the Defendant identity and that one of his neighbors (who had her laptop stolen) had a Verizon Internet account. Id.

The detective conducted informal discovery on Myspace, finding someone by the same name as the Defendant, who lived where the laptops were stolen. Simmons, P3. The photos on MySpace resembled the Defendant’s DMV photo. Id.

The detective served a subpoena MySpace for the Defendant’s IP address. The information from MySpace showed the Defendant’s IP address was a Verizon address. Simmons, P3.

A second subpoena was issued to Verizon.

The records from Verizon showed the IP belonged to the neighbor who had her laptop stolen.

The Defendant did not have permission to use the neighbor’s WiFi and the evidence showed he had been accessing her wireless network. Simmons, P4.

The detective then secured a search warrant for the Defendant’s home, where they found the stolen computer. Simmons, P5.

The Defendant moved to suppress the evidence, claiming the IP was private information that required a warrant under the US Constitution and Chapter 1, Article 11 of the Vermont Constitution. The trial court denied the motion. The appeal focused only on the Vermont Constitution. Simmons, P6.

Nothing in our Article 11 rulings suggest that an internet subscriber address and frequency of use data, unembellished by any personal information, should be treated as private. Article 11 declares that “the people have a right to hold themselves, their houses, papers, and possessions, free from search and seizure.” Vt. Const. ch. 1, art. 11. Absent exigent circumstances not at issue here, Article 11 prohibits a warrantless search of “only those areas or activities that a reasonable person would conclude are intended to be private.”

The Vermont Supreme Court then analyzed whether someone has a legitimate expectation of privacy in an IP address.

Under the Vermont Constitution, a person must have an actual expectation of privacy that society recognizes. Simmons, P15, quoting Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967).

The Court found that IP information could not reasonably be private. As the Court explained:

Given the necessary and willing exposure of an Internet user’s access point identification and frequency of use to third party Internet service providers, such information cannot reasonably be considered confidential, especially when a provider such as MySpace openly declares a policy of disclosure. The information appears no more private than a phone number and the number of calls made, or a street address or post office box and volume of mail, neither of which could plausibly be considered private.

Simmons, P15.

Bow Tie Thoughts

It is important to remember this is a state Supreme Court opinion about a state Constitutional right. However, the logic parallels Federal precedent. Additionally, the case is scheduled for re-arguments and subject to revision.

The established trend in case law is that ISP information is not protected by the 4th Amendment. Moreover, this information lacks actual content of communications. Furthermore, the information is generally limited to IP addresses and number of times an account was accessed.

There will be many cases addressing privacy issues of electronically stored information, such as the warrantless GPS surveillance case to be heard by the United States Supreme Court.

Given the number of iPhones sold, it is no surprise to see a case like People v. Schutter.

The Defendant had left his iPhone in a locked convenient store bathroom. When the Defendant went back to the store to get the phone, the store clerk refused, because the clerk was “busy.” The Defendant left after being told to come back later. Within an hour, a police officer went to the store. The clerk turned the phone over to the police officer, who had been told the above facts. People v. Schutter, 2011 Colo. LEXIS 246, at *9-11 (Colo. Mar. 28, 2011).

The police officer searched the phone and found incriminating text message evidence.

The District Court suppressed the evidence found on the warrantless search of the iPhone because 1) the Defendant did not abandon the phone and 2) even if the phone had been lost or mislaid, the police violated the Defendant’s reasonable expectation of privacy of his phone’s contents. Schutter, at *2-3. The State filed an interlocutory appeal.

The Colorado Supreme Court affirmed the District Court, because the iPhone was not abandoned, lost or mislaid under the facts of the case, thus the warrantless search violated the 4th Amendment. Id.

The Colorado Supreme Court did not wade into the swamp of when a police office could conduct a warrantless search of property that had been lost or mislaid. Schutter, at *8. The Supreme Court focused on the facts of the case, finding the following:

Under these circumstances, the officer had no grounds to believe the property’s safe return required the discovery of any further information. Assuming, without deciding, that the Fourth Amendment could tolerate, under some set of circumstances, some kind of warrantless examination of a cell phone to ascertain how it might be returned to its owner, this case cannot present that set of circumstances.

Schutter, at *9-10.

There was one dissenting opinion, taking issue with the Defendant not asking the clerk when the clerk would not be busy, setting a time to return for the phone or leaving his contact information. Schutter, at *11. As such, this one justice would find the phone abandoned. Schutter, at *12.

Bow Tie Thoughts

A 32 Gigabyte iPhone can hold a lot of data, be it in the form of contacts, photos, text messages or Apps. Moreover, there are millions of Smartphones on the market. It is a guarantee that Courts will address both civil and criminal issues involving these highly portable and sometimes easy to leave behind devices.

The denial of the petition for the en banc rehearing of U.S. v Pineda-Moreno by the Court of Appeals for the Ninth Circuit should make Lady Justice scream for review by the United States Supreme Court. U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010).

The majority in Pineda-Moreno held that the 4th Amendment was not violated when police officers snuck onto Pineda-Moreno’s driveway in the middle of the night and attached a GPS tracking device on the underside of his car. Pineda-Moreno, at *2.

The GPS recorded the Appellant’s every moment.

The denial of the rehearing prompted Chief Judge Alex Kozinski to write a forceful dissent, attacking the majority’s mugging of the 4th Amendment. More importantly, it cast a dire warning to not just the 60 million people impacted by the Ninth Circuit’s ruling (1/5 the nation’s population), but everyone in the United States. Pineda-Moreno, at *2-3.

Invading the Curtilage

Chief Judge Kozinski began his dissent summarizing the meaning of “curtilage.”

The majority found that the Appellant’s driveway was part of his home’s curtilage, however, he did not have a reasonable expectation of privacy in his driveway. Pineda-Moreno, at *3.

The “curtilage” is an area around a home that is “so closely associated with the home as to be considered part of it.” Pineda-Moreno, at *3.

The United States Supreme Court has held since the 19th Century that the “curtilage” of a home is entitled to 4th Amendment protection. Pineda-Moreno, at *4.

The Government conceded that the Appellant’s driveway was part of his home’s curtilage, which made the result even more disturbing. Pineda-Moreno, at *5-6.

The majority’s holding that the Appellant had to prove he had a separate reasonable expectation of privacy in his driveway, an area already protected by the 4th Amendment, is the legal equivalent to proving you have a reasonable expectation of privacy in your bedroom. Pineda-Moreno, at *5-6.

The majority’s logic that the Appellant did not have a reasonable expectation of privacy in his Constitutionally protected driveway, was because it was “open” to the public, such as a postal worker or someone wanting to walk up to the front door. Pineda-Moreno, at *7.

Chief Judge Kozinski summed up that service people who have a limited right to enter property to do their job (i.e., a postal worker delivering the mail), does not mean strangers have a right to go swimming in your pool or for the police to search your garage. Pineda-Moreno, at *7-8.

Moreover, claiming the police have the same search powers to enter property as neighborhood kids to get a ball from a front yard would “spell the end of Fourth Amendment protections for most people’s curtilage.” Pineda-Moreno, at *8.

The dissent also took a very big look at an often ignored area: poverty. “Poor people” do not park in gated communities, free of police officers attaching GPS tracking devices to BMW’s. Pineda-Moreno, at *9-10. The standard for privacy cannot be based on one’s economic status. Moreover, the Fourth Amendment applies to everyone in the United States, not those in the highest tax brackets.

Climb Aboard Airship One

The majority held that downloading the GPS tracking data was not a search. Pineda-Moreno, at *10.

The majority based their decision on an early 1980s case where a “beeper” was used to track a car. As the police got closer to the beeper, the signal would become stronger. Pineda-Moreno, at *10-11. The 1980s opinion compared this early technology to using binoculars to enhance your field of vision. Pineda-Moreno, at *11.

The dissent took issue with the comparison of 1980s technology verse 21st Century tracking devices. A GPS unit can pinpoint someone’s exact location on the planet, far more effectively than a beeper signal getting stronger if you are close to it. Pineda-Moreno, at *12.

Chief Judge Kozinski discussed how the use of thermal imaging technology to watch suspects inside a house was a search, because activities inside one’s home are considered private. Pineda-Moreno, at *13. To be blunt, no one expects your neighbors to watch you with Predator vision.

The Chief Judge proceeded to summarize what are any privacy advocate’s worse fears of technology:

Cell phone companies can give police the exact location of a phone on its network;

Roadside services know where you are at any given time;

Companies are building databases of location information for targeted advertising, which can be turned over to police without a warrant.

Pineda-Moreno, at *14-15.

Bow Tie Thoughts

I hope the Supreme Court takes U.S. v Pineda-Moreno and sentences it to the ash heap of history.

Technology makes our lives easier. An iPhone has more computing power then an entire computer room in the 1960s. However, we should not turn the ease of building a database into gutting our protections from unreasonable search and seizures.

In 1990, the largest user of GPS technology was the United States military. The technology was well highlighted in the first Gulf War with precise missile strikes through building windows. In the mid-1990s, the technology became more commercially available for mariners (displacing the Loran-C many boaters used for navigation).

Today, a GPS unit can sit on anyone’s dashboard in their car and pinpoint the nearest gas station for under $200.

In the 1950s, helicopters were a new technology used by the military. By the 1980s, police departments were flying them across the country for law enforcement.

Today, unmanned Predator drones are a key weapon in the war on terror.

How long will it be before police departments use unmanned drones flying over cities? Will it be Constitutional to program a “police” predator to track someone’s smartphone without a warrant?

The prospect of an Orwellian world with the ability to track citizens at any given time is something Stalin would have envied.

Chief Judge Kozinski concluded the dangers of this case very eloquently:

We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Someday, soon, we may wake up and find we’re living in Oceania.

One Federal Court has even addressed the issue of the spousal privilege claimed over instant messages sent from an employer own computer. Gooden v. Ryan’s Rest. Group, Inc., 2006 U.S. Dist. LEXIS 74944 (W.D. Ky. Oct. 12, 2006).

The Handshake

Shanahan focused on confidential communications sent from a work computer to the Plaintiff’s deceased husband’s attorney.

The deceased husband had a “handshake deal” on the terms of his employment as the Defendant’s President & CEO.

The Defendants agreed for the agreement to be codified in writing.

The husband’s work computer was used to prepare communications with his attorneys and other potentially privileged documents. Shanahan at *3.

The husband died of cancer before any agreement was finalized.

The husband’s secretary searched his computer within days of his death. Id.

The Plaintiff brought a motion to compel the return of those communications and other documents. Shanahan at *1-3.

The Employee Handbook

The Defendants’ employee handbook expressly stated that work computers could be searched and that employees did not have a reasonable expectation of privacy in their computers. Shanahan at *5.

Confidential Communications

The Court found that the communications sent from the work computer were protected by the attorney-client privilege. Here is why:

1. The husband reasonably believed he could communicate with his lawyer, because the company provided him the computer and attorney to negotiate their business agreement.

2. The Defendant paid for the husband’s attorney.

3. Email negotiations took place during business hours and over the business email accounts.

Shanahan at *10-11.

The lower court found, and the Court of Appeals agreed, it would have been unreasonable for the Defendant to have expected the husband to communicate only with his attorney with his personal email account. Shanahan at *10-11.

The Court of Appeals held:

…the Bank’s policy of access, as expressed in the employee handbook and code of conduct, does not negate that expectation of confidentiality as it does not contain any express reference to waiving the attorney-client privilege. In other words, the facts in the instant case trump the Bank’s policy.

Shanahan at *11.

Bow Tie Thoughts

The lines between a person’s professional life and personal life can become easily blurred.

Employers allowing employees to use business SmartPhones for personal use can easily trigger analysis whether there is a reasonable expectation of privacy. Moreover, companies that encourage employees to leverage social networking to further business interest can also make the line between business and personal murky at best.

Privacy will be litigated often in the coming years. It will be fact sensitive and likely will result in situations where policies in the employee handbook get thrown out the window and other times where we will all scratch our heads.

The passengers might have been hoping, “There is nothing to see here.”

After stopping the car with the Defendant and two passengers, the Defendant drove away from the stopping officer while the police officer opened the car door. As one can suspect, the police officer engaged in a low speed chase.

The Defendant again tried to start another low speed chase after being stopped a second time, but the car would not re-start. One passenger escaped on foot after the car was stopped. Gorostiza, at *2. The owner of the car, one of the passengers but not the driver, gave consent to search the car.

Search Incident of Arrest of Cell Phone Photos

The police found a loaded pistol-grip 12-shot gun during the search of the car. Two cell phones were also found, one with a dead battery and the other in the driver’s area. Gorostiza, at *3.

The police officer opened the working cell phone and saw a photo that resembled the Defendant holding the shotgun found in the car. Gorostiza, at *3.

The police officer accessed the cell phone menu and opened the “My Albums” folder. Id. The police officer found two additional photos of the Defendant holding the gun. Id.

The Defendant claimed the photos were not of him and he was being framed when questioned on the cell phone photos. Gorostiza, at *3-4.

Investigation and Search of the Cell Phone

Another investigating police officer sent the cell phone photos via MSS message to another investigating officer’s email. The cell phone photos were printed and used at the criminal trial of the Defendant. Gorostiza, at *5.

Where the Cell Phone Photos Properly Admitted?

The Defendant tried to suppress the cell phone photos, claiming an improper search incident of arrest because the cell phone was “not a container” or part of a person. Gorostiza, at *5. The Defense further argued the cell phone deserved “heighten protection.” Gorostiza, at *5.

The Court, as a preliminary matter, found the Defendant had a reasonable expectation of privacy in one of the cell phones because the police officer had knowledge the phone belonged to the Defendant. Gorostiza, at *6-7.

The Court found the search of the car that found the shotgun was proper, because the police officer had permission to search the car by the owner. Gorostiza, at *7.

The cell phone was found in a leather case, which at the time had unknown contents. The image of the Defendant holding the gun was visible once removed from the leather case. Gorostiza, at *7.

The Court held that the photo that was seen on the cell phone screen was a proper search, because it was found in a “closed container” during a valid search after the owner gave permission to search. Gorostiza, at *8.

Dodging the Bigger Issue

The bigger issue was whether the police officer conducted a proper search of the cell phone by exploring the menu items and additional photos in a sub-folder. Did the consensual search of the car allow the police officer to search for additional photos on the phone?

The Court dodged these issues, noting that two additional photos were very similar to the first photo found pursuant to a valid search. The Court stated:

Because the admission of the additional photographs seized during the further search of the cell phone was not prejudicial, we need not determine additional questions raised by the defendant in his argument. For example, we need not determine if the consent extended to a search of the electronic contents of the telephone, we need not determine if cell phones are subject to heightened privacy interests, and we need not determine if Preis’s [the police officer] knowledge that the telephone belonged to defendant should have curtailed his search of the interior of the cell phone. Gorostiza, at *13.

Bow Tie Thoughts

The issue of whether a cell phone has heightened protection during a search will one day be decided. More importantly, whether searching the menu features of a cell phone would be a valid search in similar facts. This case may have addressed these issues if the photos had been different, such as firing the gun in a different location, or perhaps committing an act of vandalism or other crime.

I am very glad this is an unpublished opinion because of the preservation methods used by the police. The collection was potentially problematic because the State used no forensic or defensible tools to collect the cell phone photos. While the State’s actions were likely acceptable in sending the photos to a police officer, it carried risk.

The collection methodology of sending a MSS message of the photo from the defendant’s phone to an investigating officer can open an ugly can of worms of destroying data, which could cause a mistrial or severely undermine a prosecutor’s case. It could provide an entertaining cross-examination by a defense attorney on what procedures were undertaken to ensure the defensibility of the evidence, especially if the defense offered a collection expert to discuss proper procedures to preserve cell phone evidence.

Products from Paraben Corporation are specifically designed for forensically imaging cell phone contents [Bow Tie Note: D4 is business partners with Paraben Corporation]. These products are currently being used by electronic discovery specialists, law enforcement, and even the US military in Iraq imaging the cell phones of insurgents who use cell phones to trigger road side bombs. Other products are also on the market. When proper tools are commercially available, why risk destroying key evidence by sending text messages from the defendant’s phone during an investigation?